The Maul Firm, P.C.

Health Law and Policy

Anthony F. Maul is an attorney and public policy consultant with over a decade of experience in complex and class action litigation. With a practice focused on health care advocacy and reform, Mr. Maul provides expert legal and consulting services to patients, providers and professional associations.

Filtering by Tag: Obamacare

Government Probe Portends Obamacare Eligibility Chaos

According to a recent New York Times report, the Obama Administration is probing hundreds of thousands of Obamacare enrollees regarding their eligibility for government premium subsidies. The Times reports that, Serco, a company hired by the government to validate enrollment information, has determined that two million individuals who enrolled in Obamacare through public exchanges provided personal data that conflicts with government records. That would be approximately a quarter of all Obamacare enrollees.

While it isn't yet clear how many enrollees will have their subsidies invalidated, the implications of this probe could spell chaos for both patients and providers. In the first instance, one would expect that individuals found to be ineligible for their subsidies would be asked to make back payments on their premiums. That would likely cause a large number of enrollees to lose their coverage, either because they can't or don't want to pay unsubsidized premiums. It's possible that the termination of these enrollees' coverage would be retroactive (especially if they refuse to pay back subsidies they've already received). 

In the meantime, these Obamacare enrollees are presently going to doctors and receiving medical care. Depending on when their coverage terminates, there is likely to be some confusion over whether patients were or were not insured at the time they received care. In the private insurance market, these "member eligibility" issues often result in insurers retroactively denying coverage for services, and demanding that providers repay any insurance benefits that were paid out. The provider then faces the challenge of seeking repayment from the patient.

Depending on the scope and consequences of the government's probe, there are likely to be a raft of coverage terminations in its wake. If these terminations play out the way they typically do outside the context of Obamacare, we should expect widespread eligibility disputes and, potentially, recoupments from providers.     

Federal Law Prohibits Group Health Plans from Discriminating Against Providers

Under current federal law, group health insurance plans are prohibited from discriminating against any health care provider acting within the scope of her license or certification. The so-called "Harkin Amendment," passed as part of the Patient Protection and Affordable Care Act, created Section 2706(a) of the Public Health Service Act. It provides that:

A group health plan and a health insurance issuer offering group or individual health insurance coverage shall not discriminate with respect to participation under the plan or coverage against any health care provider who is acting within the scope of that provider’s license or certification under applicable State law. This section shall not require that a group health plan or health insurance issuer contract with any health care provider willing to abide by the terms and conditions for participation established by the plan or issuer. Nothing in this section shall be construed as preventing a group health plan, a health insurance issuer, or the Secretary from establishing varying reimbursement rates based on quality or performance measures.

Section 2706(a) is codified at 42 U.S.C. § 300gg-5(a). It is also incorporated into the group health plan requirements of the Employee Retirement Income Security Act ("ERISA") by 29 U.S.C. § 1185d.

The statute prohibits discrimination against providers with respect to both network participation and coverage. That means that insurance companies that issue or administer group plans cannot categorically exclude providers from their networks based on provider type. It also means services that are covered when performed by one type of provider must be covered when provided by other types (so long as the services in question are within the scope of the providers' licenses).

Of course, Section 2706(a) does not define the term "discriminate," and there remains some confusion over its precise meaning.  The US Department of Labor ("DOL") is currently seeking public comment on the subject, after the Senate Appropriations Committee (of which Sen. Harkin is a member) criticized an earlier FAQ on Section 2706(a) issued by the DOL. One would expect that the DOL will issue additional guidance once the comment period expires on June 10, 2014.

The Maul Firm is currently investigating potential violations of Section 2706(a) by various insurance carriers.  

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